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Lawyers, Treason, and Deception: A Response to Andrew McCarthy

Over at the New York Times Room for Debate Blog, Andrew McCarthy comes close to accusing pro bono lawyers for Guantanamo detainees of treason. In his words, such lawyers, “assist[ed] the enemy . . . against the American people during wartime.” McCarthy writes:

Here is the legal profession’s message for the American people: “We’re just more important than you are.” Members of any other profession or institution would be indicted for coming to the enemy’s aid during wartime. Lawyers not only demand immunity from the ordinary duties of citizenship, but they insist that you admire them, or, at the very least, regard them as above criticism for volunteering their services to those trying to kill Americans.

This is a ludicrous concept, so the profession has to engage in serial deceptions to sell it. Most prominent among these is the assertion that every one, no matter how unpopular, is entitled to counsel. Nonsense.

Only criminal defendants are entitled to counsel, and those who represent them do indeed perform a constitutionally valuable function. It has never been the law, however, that war prisoners are entitled to counsel to challenge their detention as enemy combatants.
. . .
The lawyers chose to offer themselves, gratis, to our enemies for litigation the Constitution does not require. They did so knowing that this litigation would be harmful to the war effort — a fact the Supreme Court emphasized when it denied war prisoners the right to file habeas claims in 1950. The fact that we don’t forbid lawyers from doing this hardly means Americans have to approve of it.

Perhaps the most unworthy deception is the comparison of those who volunteer to represent Guantánamo detainees to John Adams’s representation of British soldiers involved in the Boston Massacre. The United States was not at war at that time, the British soldiers Adams agreed to represent were not non-uniformed terrorists, and those soldiers were defendants in a criminal trial. The proud American legal tradition involves defending the unpopular who are accused of crimes but presumed innocent.

It has nothing to do with assisting the enemy in lawsuits against the American people during wartime.

I find McCarthy’s arguments ridiculous, and I want to explain why.

Consider McCarthy’s basic argument that lawyers who represented detainees “aided the enemy in wartime,” and should normally be guilty of treason. If that’s true, isn’t the federal judiciary, and aren’t the Justices of the Supreme Court, also guilty of treason? In fact, aren’t the judges the kingpins of this treasonous plot to “hurt the war effort”? After all, lawyers only make arguments to judges. It doesn’t actually help detainees to make argument courts reject. It’s up to the judges to rule one way or the other. If the lawyers are aiding the enemy, they’re only minor players: It’s the judges, and especially the Justices, who are the real guilty parties, as they’re the ones that actually help the detainees by ruling in their favor. Does McCarthy think the Justices of the Supreme Court are guilty of aiding the enemy, and that (if we treat them like everybody else) they should be “indicted for coming to the enemy’s aid during wartime”?

Second, McCarthy’s claims about the right to counsel strike me as just wrong. The Bush Administration had initially taken the view that Yaser Hamdi, detained as an enemy combatant, did not have a right to counsel. The Administration caved when the case got to the Supreme Court, though, and the Supreme Court had this to say about Hamdi’s right to counsel:

Hamdi asks us to hold that the Fourth Circuit also erred by denying him immediate access to counsel upon his detention and by disposing of the case without permitting him to meet with an attorney. Brief for Petitioners 19. Since our grant of certiorari in this case, Hamdi has been appointed counsel, with whom he has met for consultation purposes on several occasions, and with whom he is now being granted unmonitored meetings. He unquestionably has the right to access to counsel in connection with the proceedings on remand. No further consideration of this issue is necessary at this stage of the case.

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (emphasis added). Hamdi was a U.S. citizen, but lower courts have concluded that Gitmo detainees who are citizens of other countries also have the right to counsel. See, e.g., Al-Joudi v. Bush, 406 F.Supp.2d 13 (D.D.C. 2005) (ordering the government to inform detainee counsel about information relating to Guantanamo detainees in light of the detainees “right to counsel, which requires that counsel be able to communicate with them”). Indeed, in the Al-Joudi case, the judge went out of her way to applaud the pro bono lawyers who were representing the Gitmo detainees:

The Court recognizes that Petitioners’ counsel are providing their services on a pro bono basis. Such pro bono representation, especially in controversial and high profile cases such as these, is in the very finest tradition of the American legal profession.

Given these precedents, McCarthy’s claim that “only criminal defendants” have a right to counsel, and that “it has never been the law” that the Gitmo detainees do not, strikes me as simply incorrect.

I find McCarthy’s dismissal of the Boston Massacre comparison very weak. McCarthy is right that the United States was not formally at war with Britain at that time. Of course, there was no United States yet: the trial of the Boston Massacre occurred in 1770, six years before the Declaration of Independence. But more broadly, my understanding is that there was no right to counsel as we know it today in the Boston courts in the pre-Revolutionary period. At common law, defense lawyers were forbidden: When a right to counsel was recognized, as it was generally recognized in the colonies, it was a right to have a lawyer represent you if you happened to be lucky enough to find one willing to represent you. At the time, many criminal defendants had no counsel at all. This matters because it puts John Adams in a pretty different light, I think. When Adams agreed to represent the English soldiers, he was not fulfilling some sort of obligation: No one had to represent the Englishmen. Adams acted — and was criticized then, but celebrated now, for it — because he agreed to represent the soldiers out of a personal conviction that no person should face a trial without counsel.

Finally, McCarthy strangely overlooks the basic fact that much of the litigation for the Guantanamo detainees concerns whether they are in fact the enemy. McCarthy presupposes that we all know that all the folks at Gitmo are terrorists, and the only issue is whether we feel like helping them knowing that it hurts America. But like the soldiers at the Boston Massacre, and like other criminal defendants, the Guantanamo detainees are “the accused.”

To be clear, I don’t think the lawyers who represented Guantanamo detainees are some kind of heroes. They’re just lawyers doing what lawyers do, presumably for the same weird mix of reasons that lawyers take on other pro bono cases. But that’s the point: There’s nothing exceptional about their decision to represent detainees.